Bush reportedly advised not to name white male

WASHINGTON -- President Bush, who said yesterday he is already "close" to picking a new Supreme Court nominee, is getting advice from some of his personal advisers to choose a minority candidate or a woman.

An administration source, anonymously discussing the filtering process that is now well advanced, said top officials so far are inclined to avoid naming a white male to succeed Thurgood Marshall, the only black justice ever to sit on the court, who is retiring.

But the source said that the pool of minority candidates available and acceptable to the White House appeared to be small, especially if the president's advisers were looking toward a black nominee.

Early indications are that a Hispanic-American male or a woman could emerge among the finalists.

Both the president and Justice Marshall himself said yesterday that race should not be the deciding factor in the choice of a new justice, but both also indicated they thought it was not beside the point.

Mr. Bush, discussing the screening process he said would produce a final choice "in a very few days," said he wanted "to keep in mind representation of all Americans." While he said there was not and should not be a "quota system" for judges, he told reporters that he would not regard it as a gesture toward a quota to pick a minority nominee.

Justice Marshall, quick-witted throughout most of a farewell news conference at the court, told reporters that it was always necessary to be cautious about acting on the basis of race. His father's advice, the 82-year-old jurist said, was that "there's no difference between a white snake and a black snake; they'll both bite."

The justice said he was against the use of race as merely "a ploy . . . an excuse" to say one had picked a black person for a position. He said it would be wrong to pick "the wrong Negro and saying, 'I'm picking him because he is a Negro.' I am opposed to that."

But, when asked whether race should be a factor at all, he said that "you can't ignore it" and that he knew of nobody capable of putting it aside altogether, "unless he's passive."

Mr. Bush made his comments about the judicial selection process while flying to his vacation home in Kennebunkport, Maine, for the weekend.

The president said that the decision had not yet been made on a nominee but that "it is near." He said he was eager to send a name to the Senate promptly. The court is in recess until Oct. 7.

If Mr. Bush decides to settle on a black candidate, the name most prominent in current speculation is U.S. Circuit Judge Clarence Thomas, 43. But the White House aide who discussed the filtering process indicated yesterday that officials understand he may have trouble winning Senate approval. Before becoming a federal judge a year ago, Mr. Thomas was the controversial chairman of the U.S. Equal Employment Opportunity Commission.

Among the Hispanic-Americans whose names are circulating are U.S. Circuit Judges Ferdinand F. Fernandez of Pasadena, Calif., and Emilio M. Garza of San Antonio and U.S. District Judges Jose Cabranes of New Haven, Conn., and Ricardo H. Hinojosa of McAllen, Texas.

Mr. Bush told reporters he was working from a list that includes only "a handful of names."

Justice Marshall shied away pointedly from giving Mr. Bush any advice about the selection and took care to avoid criticism of the president, whom he has sharply attacked in public in the past.

He told reporters yesterday that "I think the president knows what he's doing and he's going to do it. . . . I don't have the slightest idea of making any comment on what if anything the president of the United States will do."

The justice, who had trouble with his hearing during the news conference, said he and his wife and doctor had been discussing the possibility of his retiring for the past six months, "and we all eventually agreed, all three of us, that this is it, and this is it."

His down-to-earth humor showing, Justice Marshall said, when asked what he would be doing in retirement: "Sit on my rear end."

When asked to go into detail on the "medical condition" he had told the president was a factor in his decision, the justice said, "What's wrong with me? I'm old.

"I'm getting old and coming apart."

He denounced a newspaper report that he had retired because he was "angry and frustrated" as "a double-barreled lie."